The H-1B Visa Blog by Siliato and Malyk

The "Employ American Workers Act," ("EAWA"), signed into law on February 17 by President Obama as part of the "American Recovery and Reinvestment Act", has certainly made it more complicated for companies that received Troubled Asset Recovery Program ("TARP") funds to hire new foreign workers on H-1B visas. More specifically, Section 1611(b) of the American Recovery and Reinvestment Act of 2009 provides that TARP recipients may not hire new H-1B workers unless such recipients comply with the requirements for an "H-1B dependent" employer, as defined by INA 212(n)(3).
Prior to EAWA, "H-1B dependent" was a special status assigned to companies that employ, generally, 15% or more of its workforce with H-1B visa holders. Now, all TARP fund recipients will fall into that status, regardless of the percentage of H-1B non-immigrants it employs. As such, the United States Citizenship and Immigration Services ("USCIS") has since revised the Form I-129 HDC, Petition for Nonimmigrant Worker, to include a question which asks whether the petitioner has received TARP funding. Although there is no separate question about Section 13 funding under the "Federal Reserve Act" on the newly updated form, recent USCIS guidance advises that the answer to the new TARP funds question should still be "yes" if the petitioner received government funds under Section 13 as such companies are are subject to the same restrictions under EAWA. [Section 13 funding includes government loans from the Term Asset-Backed Securities Loan Facility, otherwise known as "TALF", and other Federal lending programs].
Before hiring a qualified foreign national, H-1B dependent companies are required to actively recruit U.S. workers and may not file a Labor Condition Application ("LCA") for new employment unless they complete the required recruitment and make the attestations required of H-1B dependent employers. Among other attestations, H-1B-dependent companies are required to attest that the company (i) engaged in a "good faith" effort to recruit U.S. workers for the position for which the company is seeking to employ the H-1B worker; and (ii) offered at least the "prevailing wage" during the recruitment process for such U.S. workers. Such attestations, of course, are subject to audit.
Some reports indicate that EAWA's stimulus-related restrictions will substantially impact the number of H-1B petitions filed under the 2010 quotas for H-1B visas. Whether that is, in fact, the case remains to be seen.
Post Authored By: Scott R. Malyk, Esq., Meyner and Landis LLP

With the advent of the annual H-1B "lottery" imminent, once again we are called upon to make key decisions in the last days leading up to the April 1 "deadline." Several sources seem to indicate that neither the regular 65,000 cap nor the 20,000 U.S. master's degree cap will be reached during the 5-business-day filing rule period. That notwithstanding, we must plan on each of the caps being reached within such period and be able to address issues regarding whether to premium process or not, the timing of filing of LCAs, when and where to file the petition, the date of issuance of the U.S. degree and the ability of an F-1 nonimmigrant student to be able to remain in the U.S. if his or her F-1 status expires before 10/1/2009.
Advantage of premium processing?Several clients insist upon and, indeed, several practitioners recommend the use of premium processing for filing H-1B cap cases. USCIS has made it clear, however, that filing an H-1B petition under the premium processing program will not increase the chances of obtaining an H-1B under the quota. If premium processing is requested and the case is selected in the lottery, or otherwise accepted for processing if a lottery is not needed, the 15 day premium processing window will start on the day the case is selected or otherwise accepted for processing. While it is possible that a receipt may be issued more rapidly for premium processed cases selected in the lottery, that benefit may not be worth the $1,000 investment. For certain F-1 students, however, as discussed below, learning sooner may prove advantageous for them.
When should an LCA be filed?By regulation, an LCA may not be submitted earlier than six months prior to the commencement date of the intended employment. As such, to insure having a certified LCA on hand for an April 1 filing, the start date on the LCA must be a date prior to October 1, 2009. For example, you may utilize a certified LCA with a start date of September 23, 2009 and an end date of September 22, 2012 (3 years from the start date). Caution: It is critical that the intended start date of employment stated in the petition not be earlier than October 1, 2009. If it is, your cap case petition will be rejected since there are no new H-1B numbers available prior to October 1st.
What if the U.S. Degree has not yet been awarded but will be awarded by 10/01/09?Evidence must be submitted from an appropriate official at the school (e.g. a Dean or Registrar) that all requirements for the degree have been completed by March 31, 2009 or the petition will be denied.
When and where should the H-1B petition be filed?Under current regulations, a "lottery" will take place if USCIS receives a sufficient number of petitions to reach the numerical limit for either cap on any one of the first 5 business days. While the 5 business day filing rule will bring us to April 7, 2009, the most prudent course to follow is to file all H-1B petitions on March 31st by overnight courier for April 1 delivery. Petitions should be filed with the USCIS Service Center having jurisdiction over the foreign national's employment location.
Is the "Cap Gap" regulation still in effect for F-1 students?Under the "cap gap" regulation promulgated in April 2008, the OPT for a student in valid F-1 will automatically be extended while an H-1B petition is pending with the USCIS. So long as the petition remains pending, is selected in the "lottery" or is approved, OPT will be extended (through the intended commencement date set forth in the petition), provided that that a "change of status" is elected in Section 3 of the I-129 form. If the case is not selected or the petition is denied, OPT will not be extended but will end on the date set forth on the student's EAD. The normal 60 day grace period for F-1 students will apply.
An F-1 student who (i) was in a valid grace period on April 1 and (ii) the beneficiary of a properly filed H-1B cap case, would benefit from an automatic extension of his or her D/S admission. Because the OPT had expired, however, OPT would not be extended automatically because it was already expired.
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Post Authored By: Anthony F. Siliato, Esq., Meyner and Landis LLP